Tuesday, November 11, 2008

Prop. 8 Lawsuits ...

When the ACLU first filed a lawsuit in the wake of the Proposition 8 passage I felt their legal arguments were weak. As it turns out I was just ignorant, they have smart lawyers over there.

The main question in the ACLU lawsuits, and similar suits filed is: whether proposition 8 is an amendment or revision to the California Constitution?

If the proposition is a revision to the constitution, then it's illegal. Constitutional revisions can only be placed on the ballot only by a two-thirds vote of the Legislature.

A constitutional revision is any change which touches upon the core elements of the document, as opposed to an amendment which is only tangentially related. In this case, there is a strong argument for revision because Proposition 8 would change the fundamental principle of equal protection.

Equal protection is the fundamental right to have our laws apply equally to all.

Since the Court already held that denying same sex couple the right to "marry" is a violation of equal protection even when they have civil-unions available, the current ACLU lawsuit is very strong.

They are so going to win this. Unless the CA Supreme Court does something stupid.

It recently occurred to me that arguing that gays don't need marriage since they have strong civil-union rights sounded a lot like another argument I heard before... separate but equal. That didn't turn out so well.

4 comments:

Michael Ejercito said...

In this case, there is a strong argument for revision because Proposition 8 would change the fundamental principle of equal protection.
It was once argued, in People v. Frierson , that a voter initiative changed the fundamental principle of cruel and unusual punishment (by carving out an exception for the death penalty, which the California Supreme Court had declared to be cruel and unusual.)

The Supreme Court, while overturning the death sentence, nevertheless ruled that the amendment stood. Note that this was the Rose Bird court that did this. The court at the time was not very friendly to the death penalty, and yet they did not overturn the amendment.

Franklin said...

Michael is right. People v. Frierson, 25 Cal. 3d 142 (1979). See also, Crawford v. Board of Education, 113 Cal. App. 3d 633 (1980), affirmed 458 U.S. 527 (1982)(implicitly held that an initiative eliminating busing of students to accomplish racial integration in cases of de facto, rather than de jure, racial discrimination was not a revision).

But see, Raven v. Deukmejian, 52 Cal. 3d 336 (1991) (holding that a portion of Prop 115, an initiative, was a revision and thus unenforceable).

I also think there might be another case that also holds an revision attempt as invalid, I couldn't find it.

Point is,the newer case gives hopes to the anti-prob 8 side. It won't be an easy argument, but I still think it's strong given the May ruling that sparked the proposition already found equal protection violations.

Note: Some content above stolen from here

Michael Ejercito said...

But see, Raven v. Deukmejian, 52 Cal. 3d 336 (1991) (holding that a portion of Prop 115, an initiative, was a revision and thus unenforceable).
A portion of Prop 115 restricted the state Supreme Court's power to interpret the rights of criminal defendants to conform to the interpretations of the U.S. Supreme Court . This would restrict the state courts from recognizing legal protection beyond the legal protections recognized by the U.S. Supreme Court.

It won't be an easy argument, but I still think it's strong given the May ruling that sparked the proposition already found equal protection violations.
Equal protection is not absolute by any means. Even the strict scrutiny standard allows the government to violate equal protection if there is a compelling government interest, the policy is narrowly tailored, and has the least restrictive means. Following the constitution is a definitely a compelling government interest.

And the reason I cited People v. Frierson was because it directly affected the fundamental rights to life and to be free from cruel and unusual punishment. If those rights can be affected by an amendment...

Franklin said...

Sorry it took me so long to respond. School keeps me busy.

Good point ME. Yes, a law affecting equal protection does not mean a definite outcome in a court decision. Strict scrutiny does allow for such laws in cases of compelling state interest. However, arguing that that the compelling state interest is following the part of a constitution which itself is being analyzed is circular logic.

In order for the amendment to survive, it must be argued that banning same-sex marriage in a compelling state interest. Also, the fact that the amendment does not affect domestic partnership rights is still not enough to be considered narrowly tailored (in my opinion), but hopefully we won't even get to this part of the analysis since preventing gay-marriage is not a compelling state interest (again in my opinion).

Honestly, we can speculate so much but nobody really knows what is going to happen, but at least the Supreme Court recently decided to take up the case.